Federal Court Decisions

 

Date: 20090316

Docket: IMM-921-08

Citation: 2009 FC 266

Ottawa, Ontario, March 16, 2009

PRESENT:     The Honourable Mr. Justice Russell

 

 

BETWEEN:

ABDUL GHAFFAR ALAKOZAI,

SEEMA ALAKOZAI,

ABDUL MUMEN ALAKOZAI

by his litigation guardian,

ABDUL GHAFFAR ALAKOZAI

and CANADIAN LUTHERAN

WORLD RELIEF

Applicants

and

 

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application pursuant to s. 72 (1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of an immigration officer (Officer) of the Canadian High Commission in Islamabad, Pakistan (CHC), dated January 15, 2008 (Decision), in which the Officer refused the Applicants’ application for permanent residence in Canada as not falling within the Convention Refugee Abroad or the Humanitarian-protected Person Abroad classes.

BACKGROUND

 

[2]               The Applicants are citizens of Afghanistan and part of the Pashtun ethnic group. The Principal Applicant, Abdul Alakozai, is currently 56 years old. Seema, the Principal Applicant’s wife is 51 years old and the Principal Applicant’s son, Abdul Mumen Alakozai is 17 years old. Two other sons of the Principal Applicant and his wife were killed in Afghanistan on August 17, 2004. They were 25 and 23 years old at the time.

 

[3]               There was fighting between the Tajik and Pashtun ethnic groups in Herat where the Applicants lived. The Applicants fled from Herat to a village outside Melysebcha after their sons were killed and remained there for almost one month until they fled from Herat to Kandahar, then to Kabul and on to Pakistan. The Applicants say they were unable to retrieve any documents or personal belongings from their house because of the danger. They were eventually told that their house had been looted.

 

[4]               The Applicants escaped from Afghanistan by paying for a truck to take them to Kandahar, staying there one night and then continuing to Kabul. In Kabul, the Applicants looked for friends or relatives to assist them but they were unable to find anyone. They believed that their friends and relatives had moved to seek refuge elsewhere. The Applicants feared remaining in Pakistan as there was ongoing mistreatment at the hands of the police and a lack of settlement opportunities.

 

[5]               The Principal Applicant says he was a teacher in Afghanistan. He had completed six years of primary school and 6 years of secondary school, followed by two years at a teaching institute in Kabul where he received his teaching diploma. The Principal Applicant also had some “non-formal” training as a carpenter. He says he worked as a teacher from March 1973 until December 1976 at Hayati Primary School in Herat, and from March, 1977 until June, 1982 at Alawudeen Ghuri School in Herat. From 1982 to 1991 he worked as a carpenter, and then again as a teacher from March 1991 until September 2004 at Alawudeen Ghuri School in Herat.

 

[6]               The Applicants applied for a permanent resident visa on May 20, 2005. They applied as refugees outside of Canada on the basis that their lives were in danger in Afghanistan. This application was filed in conjunction with an undertaking to sponsor by a Sponsorship Agreement Holder pursuant to the private sponsorship program in subsection 13(2) of the Act and Part 8 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations). The application included a Letter of Approval from the Canadian Lutheran World Relief (CLWR) office in Toronto, dated November 30, 2005.

 

[7]               The Applicants were interviewed by the Officer at the Canadian visa office in Islamabad on November 22, 2007. In a January 9, 2008 letter, the Officer rejected their application.

 

 

 

 

DECISION UNDER REVIEW

 

[8]               The Officer held that she could not establish the Applicants’ credibility as both the Principal Applicant and his wife provided conflicting information about their careers in Afghanistan. The Officer found that the evidence of the Principal Applicant contradicted both his wife’s and his own application form. When the Officer asked the Principal Applicant and his spouse to explain these contradictions they were unwilling or unable to do so. Consequently, the Officer held that she was not satisfied that the Applicants were seriously or personally affected by the civil conflict in Afghanistan or that they met the requirements of the Act. Their application was refused.

 

ISSUES

 

[9]               The Applicants submit the following issues for review:

(a)                Did the Officer err in law in reaching her Decision with respect to the Applicants’ application for permanent residence in Canada and, in particular, in finding that the Applicants did not meet the definition of the Convention Refugee Abroad Class, or the Humanitarian-protected Persons Abroad Class, and in particular the Country of Asylum Class?

(b)                Did the Officer err in law in making erroneous findings of fact without regard to the evidence before her, and was her Decision patently unreasonable or capricious considering the evidence before her, or did she ignore or misinterpret evidence before her?

(c)                Did the Officer err in failing to observe a principle of natural justice, procedural fairness or other procedures that she was required by law to observe and did she also demonstrate a reasonable apprehension of bias?

(d)                Such further and other grounds as the Applicants may advise and this Court permit.

 

[10]           In their Reply, the Applicants have also raised several other issues:

(a)                Did the Officer err in failing to consider the application under both the Country of Asylum Class and the Convention Refugees Abroad Class?

(b)                Did the Officer err in failing to consider the application in light of CIC policy related to gender-related persecution, including the IRB’s Gender Guidelines for Women Refugee Claimant’s Fearing Gender-Related Persecution?

(c)                Did the Officer err in failing to duly consider the reasons why the Applicants feared persecution, and by refusing the claim based on credibility findings related to peripheral matters (i.e. the answers provided by the Principal Applicant related to his employment)?

 

STATUTORY PROVISIONS

 

[11]           The following provisions of the Act are applicable in these proceedings:

 

[12]           The following provisions of the Regulations are applicable in these proceedings:

 

STANDARD OF REVIEW

 

[13]           In Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir),  the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review” Dunsmuir at paragraph 44. Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.

[14]           The Applicants submit that the standard of review applicable to a visa officer’s decision as to whether an applicant comes within the definition of Convention refugee or Country of Asylum class is reasonableness simpliciter, as it is a question of mixed law and fact: Krishnapillai v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 302 at paragraphs 5-10.

 

[15]           The Respondent submits that a visa officer’s decision should be assessed against the reasonableness standard set out in Dunsmuir. The only relevant exception is issues of procedural fairness where correctness applies.

 

[16]           The Respondent relies on the case of Azali v. Canada (Minister of Citizenship and Immigration) 2008 FC 517 which involved a visa officer refusing an application for permanent residence based upon the Convention Refugee Abroad Class or the Humanitarian-Protected Persons Abroad Designated Class. The three issues reviewed in that case were: (1) whether the officer erred in requiring corroborative evidence as a condition of acceptance of the applications; (2) whether the officer erred in failing to draw a conclusion as to whether he accepted the applicants’ explanation for the error in their forms; and  (3) whether the officer erred in failing to confront the applicants with the inconsistency between their application and their previous applications for temporary resident visas. It was held that the first two issues were questions of fact and reviewable on the “deferential standard of reasonableness” while the third issue was a question of procedural fairness and reviewable on a standard of correctness.

 

[17]           The Respondent submits that the Officer’s Decision in this matter is entitled to deference under the reasonableness standard, with the exception of procedural fairness, which should be assessed on the correctness standard.

 

[18]           In light of the Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this Court, I find the standard of review applicable to the issue of whether the Applicants were Convention refugees or Humanitarian-protected persons abroad to be reasonableness. When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para. 47. Put another way, the Court should only intervene if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

 

[19]           In relation to the credibility of the Applicants, Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (Aguebor) at paragraph 4 states that “[a]s long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.” In other words, the Board's credibility findings in the present case are entitled to a high degree of deference and the burden rests upon the Applicants to show that the inferences drawn by the Board could not reasonably have been drawn.

 

[20]           On the procedural fairness issues, I agree that the proper standard of review is correctness: Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1.

 

[21]           For the reasonable apprehension of bias issue, I rely upon the test outlined by the dissent in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 (Liberty).

 

ANALYSIS

 

 

[22]           The central complaint in this application is that the Officer was unreasonable to base her Decision regarding a well-founded fear of persecution solely on credibility findings. The Applicants say that the Officer should have gone on to address the full basis of the Applicants’ claim. Because the Officer curtailed the process on the grounds of credibility, she did not undertake a full assessment and analysis of the Applicants’ case. The Applicants also say that the Officer failed to provide any analysis of her credibility concerns related to the merits of the claim.

 

[23]           A full explanation and analysis of the problem was provided to the Applicants in the Decision. The letter of January 9, 2008 explains that, because of the conflicting evidence provided about the Principal Applicant’s teaching career in Afghanistan, it was impossible for the Officer to establish that either of the adult Applicants had any credibility. Not only did the Principal Applicant contradict his own written submissions about his teaching career, his wife’s evidence on the same topic contradicted the evidence of the Principal Applicant.

[24]           The Officer provided the Principal Applicant and his wife with a full opportunity to explain what were, in fact, fundamental and incomprehensible discrepancies. There was no problem with the interpreter. The Applicants confirmed that they understood the questions. But they simply failed to answer the basic issues: “When asked to explain this, you and your spouse were either unwilling or unable to do so. This lack of credibility puts your whole claim in doubt, such that it must be refused.”

 

[25]           The overall lack of credibility meant that the Officer could not be “satisfied that you continue to be seriously and personally affected by the civil conflict in Afghanistan.”

 

[26]           It is also clear from the CAIPS notes that the Officer was not even able to establish the Applicants’ identities. They said they had fled Afghanistan in a hurry and so had been unable to obtain any identity documentation. But the Applicants did not provide a satisfactory answer when the Officer questioned them on this issue.

 

[27]           Had the Officer been able to establish that the Applicants were credible people, it is obvious that the process would have continued and a fuller assessment would have been made.

 

[28]           The issues, then, are whether the Officer’s general negativity finding was reasonable on the facts and whether she was legally justified in curtailing the application process after reaching a conclusion that she could not establish that the Applicants were credible claimants.

 

[29]           In my view, there is nothing in the evidence to suggest any kind of procedural unfairness. The Officer made sure that the Applicants understood the interpreter. She asked them simple questions on a fundamental issue. She asked the questions several times. She explained the enormous discrepancies in the evidence to the Applicants. She asked them to explain. She gave them time to explain. But they either could not, or would not, explain the differences in their evidence.

 

[30]           There was also nothing in the Officer’s conduct that breached the relevant guidelines for interviewing refugees, and what the Applicants point to as inappropriate comments in the CAIPS notes are entirely neutral and do not suggest a “strong negative attitude the Applicants and a misunderstanding of events.” The fact that the Applicants now point to such matters reveals how difficult they have found it to establish fault with the Decision.

 

[31]           It is important to bear in mind that the Applicants submitted no documentation with their application. Hence, it was crucial that the Officer examine their narrative carefully to establish the legal requirements for their claim. This is what she attempted to do. There is nothing in her conduct that was procedurally unfair and, given the enormous contradiction within the husband’s own testimony as well as between the husband and wife over the husband’s profession and what he had been doing in Afghanistan for over 30 years, there is nothing in the Officer’s general negativity finding that would take it outside of the range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[32]           The only issue before me, in my view, is whether the Officer’s appropriate finding on general credibility justified her not proceeding to address all of the issues that would normally be addressed in this kind of claim.

 

[33]           It is clear that the burden of proof rested upon the Applicants: Salimi v. Canada (Minister of Citizenship and Immigration) 2007 FC 872 at paragraph 7.

 

[34]           It is also clear that the Officer had good grounds for holding that the Applicants were in breach of subsection 16(1) of the Act in that they had not answered truthfully all questions put to them for the purposes of the examination. What is more, the Applicants could not clearly establish their identities with the usual documents.

 

[35]           Any relevant country condition documents alone would not have provided an adequate basis for a positive determination because the Applicants would have had to demonstrate a link between their personal situation and the situation in Afghanistan. The Applicants, however, could not provide credible evidence concerning their own situation. The Officer found that general credibility was lacking. In other words, there was no point in proceeding further with the application process.

 

[36]           But was the Officer’s finding of a general lack of credibility on the part of both the husband and the wife sufficient to dispose of the claim? The decision of the Federal Court of Appeal in Sellan v. Canada (Minister of Citizenship and Immigration) 2008 FCA 381 suggests that it was:

3.                  In our view, that question should be answered in the following way: where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. The claimant bears the onus of demonstration there was such evidence.

 

4.                  This leads to the question of whether there was in the record before the Board any evidence capable of supporting a determination in the respondent’s favour. In our view, there was clearly no such evidence in the record. We are satisfied that had the Judge examined the record, as he was bound to, he would no doubt have so concluded. In those circumstances, returning the matter to the Board would serve no useful purpose.

 

 

[37]           In the present case, there was no independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. This is because there was no evidence to support a link between the documentation on country conditions in Afghanistan and the Applicants’ personal situation. The Applicants’ personal evidence just could not be relied upon. In addition to the contradictions, the Applicants could not even establish their identities.

 

[38]           The Applicants cite a number of cases for the proposition that the Officer was required to proceed with an assessment of the documentary evidence and the full extent of the application even though there was a negative finding of credibility with regards to their alleged experience of persecution. For example they point to the words of Justice Blais in Fernando v. Canada (Minister of Citizenship and Immigration) 2006 FC 1349 at paragraphs 27, 29 and 30.

 

[39]           However, Justice Blais’ conclusions on this point in Fernando were as follows:

31     Based on the existing jurisprudence, it could thus be said that the key factor in determining whether an assessment of the documentary evidence before the Board will be required even if the claimant is found not to be credible, will depend on the nature of said evidence and its relationship to the claim.

 

32     The applicant submits that the panel ignored evidence that would show that shopkeepers in Colombo, such as the applicant, have been the victim of LTTE extortion tactics and threatened with bodily harm should they fail to comply.

 

33     Nevertheless, the onus is to the applicant to demonstrate the link between the personal situation of the applicant and the situations where extortion could amount to persecution in some circumstances in Sri Lanka.

 

34     Once the lack of credibility of the applicant has been established, I have difficulty believing that the panel has the duty to look at the documentary evidence to find a link to factual elements of the applicant's situation; the link has to be demonstrated by the applicant, not the panel.

 

 

[40]           It is the same with Justice Mactavish’s decision in Bastien v. Canada (Minister of Citizenship and Immigration), 2008 FC 982. Everything Justice Mactavish says in Bastien to the effect that a negative credibility finding is not “the end of the matter” was premised upon the fact that there was no dispute in that case that the applicant was a Haitian woman who would be returning to Haiti. There was a link between the established facts and the risks alleged. In the present case, no such link exists because the Applicants’ narrative was reasonably found not to be credible.

 

[41]           The Applicants have filed an affidavit with this application sworn by Muslina Waziri, who is the Principal Applicant’s cousin in Canada. This affidavit does not comply with Rule 12(1) of the Federal Court Immigration and Refugee Protection Rules and, for the reasons given by Justice Pinard in Toma v. Canada (Minister of Citizenship and Immigration) 2006 FC 779, at paragraphs 5-8, it can be afforded little weight and is insufficient to affect my conclusion in this matter.

 

[42]           In the end, the behaviour of the Applicants at their interview remains a great mystery, but I can find no reviewable error in the Officer’s Decision.

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that

 

1.      This application is dismissed.

2.      There is no question for certification.

 

 

“James Russell”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-921-08

 

STYLE OF CAUSE:                          ABDUL GHAFFAR ALAKOZAI, SEEMA ALAKOZAI,

ABDUL MUMEN ALAKOZAI by his litigation guardian, ABDUL GHAFFAR ALAKOZAI

and CANADIAN LUTHERAN WORLD RELIEF

                                                            

                                                                        v.

 

                                                                        THE MINISTER OF CITIZENSHIP AND   IMMIGRATION

 

 

PLACE OF HEARING:                    TORONTO, ONTARIO

 

DATE OF HEARING:                      January 29, 2009

 

REASONS FOR JUDGMENT
AND JUDGMENT:                          RUSSELL J.

 

DATED:                                             March 16, 2009

 

 

 

APPEARANCES:

 

Timothy Wichert	FOR THE APPLICANTS
Rhonda Marquis	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Jackman and Associates Barristers and Solicitors Toronto, Ontario	FOR THE APPLICANTS
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT